Mass. Lawyer's Journal - July 2010

WWW.mASSbAr.Org VOlume 17 | number 10 | July 2010VOlume 17 | number 10 | July 2010

presiDent yarasHUs’ 2009-10 termOutgoing president looks back on her year, endeavors#

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vioLating “aLCoHoL-free” proBationLearning from the Galluccio matter#

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Al-Lami recognized by MBA as women’s rights trailblazer#

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iraQi attorney HonoreD

See PAge 2 fOr A cOmPlete liSting Of thiS iSSue’S cOntentS.

When the fi rst woman lawyer came from England to the colonies in 1638, people did not know how to address a woman of her stature in a suffi ciently re-spectful manner, so they called her ‘Gen-tleman Margaret Brent,’ both in person and in court records. It wasn’t until more than 230 years later, in 1869, that another woman in this country worked as a practic-ing lawyer.

In Massachusetts, it was 13 years after that milestone that Lelia J. Robinson be-came our fi rst woman attorney, in 1882. The Massachusetts Bar Association, which

fi led its articles of organization in 1911, fi rst admitted women in 1913.

In completing my term as the eighth woman president of the MBA, I have the unique privilege of passing the gavel to an-other woman. This is the fi rst time a woman will succeed another woman as president in the association’s 100-year history.

Entering our year of centennial cel-ebrations at the MBA, it is appropriate to look back and consider how far we have come and how far we have to go, and also to understand this history in the context of the status of women’s rights throughout the world.

Approximately 50 to 60 percent of most law school classes now consist of women. In addition, Gov. Deval Patrick has been widely praised for his diverse and inclusive judicial appointments, with more than 47 percent being women. More generally, we passed a milestone earlier this year

presiDent’s View

VaLerie a. yarasHus

WWW.mASSbAr.OrgWWW.mASSbAr.Org

Lawá la

Limited assistance representation’s impact on the court system and lawyers

When Limited Access Rep-resentation was fi rst introduced in Massachusetts about a decade ago, the legal system pushed back hard. Judges resisted it because they wanted to see consistency in legal representation in cases from beginning to end. Attorneys feared it would draw business away. And you’ve all heard the saying, “He who is his own lawyer has a fool for a client.”

That was then, this is now.

On May 1, 2009, the Massa-chusetts Supreme Judicial Court permitted the use of Limited As-sistance Representation (LAR) in all the state’s trial courts. Each Trial Court Department chief justice, with approval of Chief Justice for Administra-tion and Management Robert A. Mulligan, could now make LAR available in his or her trial court.

The Probate and Family Court adopted LAR in all its di-visions as of May 8 of last year. As of May 3 of this year,

they wanted to see consistency in they wanted to see consistency in legal representation in cases from legal representation in cases from beginning to end. Attorneys feared beginning to end. Attorneys feared it would draw business away. And it would draw business away. And you’ve all heard the saying, “He you’ve all heard the saying, “He you’ve all heard the saying, “He who is his own lawyer has a fool for a client.”

INSIDEis Limited Assistance

Representation right for you? PAge 5

by chriStinA P. O’neill

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Key items still unresolved as legislative session comes to a closeby lee cOnStAntine

As the formal portion of the legisla-tive session winds down, two issues vi-tal to the Massachusetts Bar Association remain unsettled at the Statehouse.

BudgetAdequate funding for the court sys-

tem remains a top priority for the MBA. The MBA’s recently released Crisis in Court Funding Task Force Report cap-tures stories of some every day court users and how the funding crisis person-ally and drastically affects citizens.

Approximately 42,000 people use the court system every day, excluding court employees and jurors. From July 1, 2007, through May 10, 2010, the Tri-al Court lost 740 positions, a 9.7 percent decline in staffi ng.

Staffi ng reductions combined with other budget cuts implemented over the past two years have created backlogs and delays.

The House and Senate have now both passed their fi scal 2011 budgets and ap-pointed a conference committee to work out the differences between the two documents. The conference committee budget cut the Trial Court accounts by $17.5 million from fi scal 2010 levels.

On June 30, Gov. Deval L.

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Photo by Katherine Castro

10th ANNUAL SHAKESPEARE AND THE LAW

INSIDEbush offi cials justify war, presidential powersat 10th annual shakespeare and the Law event

story and photos, PAge 8

former White house Chief of staff Andrew h. Card jr., center, gestures while making a point during the panel discussion. from left to right: defense attorney j.W. Carney jr., Raytheon Co. general Counsel jay b. stephens, suffolk university Law professor Michael Avery, Card, McCarter & english LLP partner Daniel j. Kelly, Assumption College professor bernard j. Dobski and university of California at berkeley professor john yoo.

‘The paramount moral challenge’ for this century

LawLawLawLawLaw

2 Massachusetts Lawyers JournaL | july 2010

Volume 17 / No. 10 / july 2010

eDitoR: Bill archambeault

ContRibuting WRiteRs: jennifer Rosinski, Kelsey sadoff

senioR Design MAnAgeR: N. elyse lindahl

DiReCtoR of MeDiA AnD CoMMuniCAtions: tricia M. Oliver

ACting eXeCutiVe DiReCtoR: Martin W. healy, esq.

geneRAL CounseL AnD LegAL eDitoR: Martin W. healy, esq.

PResiDent: Valerie a. yarashus, esq.

PResiDent-eLeCt: Denise squillante, esq.

ViCe PResiDent: Richard P. campbell, esq.

ViCe PResiDent: Douglas K. sheff, esq.

tReAsuReR: Robert l. holloway jr., esq.

seCRetARy: jeffrey N. catalano, esq.

© 2010 Massachusetts Bar Association

Materials may not be reproduced without permission.

Lawyers Journal (ISSN 1524-1823) is published 12 times a year, by the Massachusetts Bar Association, 20 West St, Boston, MA 02111-1204. Periodicals postage paid at Boston, MA 02205. Postmaster: send address changes to Lawyers Journal, 20 West St., Boston, MA 02111-1204.

Subscription rate for members is $20, which is included in the dues. U.S. subscription rate to non-members is $30. Single copies are $3.

Telephone numbers: editorial (617) 338-0676; general MBA (617) 338-0500.

Email address: [email protected].

Readers are invited to express their opinions as letters to the editor and op-ed commentaries. All submissions are subject to editing for length and content. Submit letters and commentaries to: Editor, Lawyers Journal, at the address given above or via e-mail to [email protected], or fax to (617) 542-7947.

A publication of the Massachusetts bar Association

tiMothy M. WARRen, chairman

tiMothy M. WARRen jR., ceO and Publisher

DAViD b. LoVins, President and cOO

VinCent MiChAeL VALVo, Group Publisher & editor-in-chief

CUsTOM PUBLICaTIONs

eDitoR: christina P. O’Neill

AssoCiAte eDitoR: cassidy Norton

CreaTIVe serVICes

CReAtiVe DiReCtoR: john Bottini

senioR gRAPhiC DesigneR: scott ellison

gRAPhiC DesigneR: Will samatis

gRAPhiC DesigneR: Marcy Mahoney

gRAPhiC DesigneR: Nate silva

Design inteRns: Patrick Feger, Geneva cegelis

PUBLIsHINg grOUP saLes & MarKeTINg

PubLiCAtions gRouP sALes MAnAgeR: George chateauneuf

NewsPaPers

ADVeRtising ACCount MAnAgeR: Mark j. schultz

ADVeRtising, MARKeting & eVents CooRDinAtoR:

emily torres

eVeNTs

eVents MAnAgeR: sarah cunningham

TeLePHONe NUMBers:

ADVeRtising (617) 896-5344

eDitoRiAl (617) 896-5353

eVents (617) 338-5314

ON THe COVer•LAWÁLAcArte limited assistance Representation’s impact on the court system and lawyers

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INsIDe THIs IssUe

because, for the fi rst time ever in Ameri-can history, women now hold the major-ity of the jobs in this country.

While we have made great progress on strengthening women’s presence in the profession and on the bench, wom-en’s ascension rate to making partner and other top leadership positions falls short. One study after another has shown that a woman attorney’s chance of making partner in a law fi rm has remained stag-nant (or worse) over the last two decades. The National Association of Women Lawyer’s (NAWL) 2009 National Survey on Retention and Promotion of Women in Law Firms found that women do not even make the list of top 10 rainmakers at almost half of the largest fi rms in the country.

Equally discouraging is the rate at which women leave the profession. The Women’s Bar Association (WBA) of Massachusetts analyzed the database of the Massachusetts Board of Bar Over-seers (BBO) and found that women are leaving the legal profession in greater numbers than men, by virtue of the data that women now make up nearly 60 per-cent of those lawyers listed by the com-

monwealth’s BBO as ‘inactive.’While we continually strive for pro-

fessional equality for women in the United States, the accounts of oppres-sion against women in other countries are almost unthinkable. In May, it was our privilege to meet and learn from Sua’ad Abbas Salman Al-Lami, a truly impressive and courageous woman law-yer from Iraq (hosted here by the Hon. George Phelan). This wonderful attorney has previously received the International Woman of Courage Award from the U.S. State Department and was personally welcomed to Massachusetts by Gov. Pat-rick. During her visit to the Bay State, Al-Lami shared her experiences of living and practicing law in Baghdad over the course of many years. See related arc-ticle on page 9.

We heard her explain that it is dif-fi cult to advocate for more of the subtle aspects of equality when woman are still being killed for wearing makeup or not wearing a headscarf in certain ultra-con-servative areas.

We learned that women in Iraq have extremely limited options for birth con-trol. By custom and by regulation, a woman is only able to have a surgical sterilization if both: 1) she already has fi ve children, and 2) her husband agrees. As a practical matter, it is often the moth-er-in-law (who is already typically living with them) who decides whether a wom-an and her husband will have a surgical sterilization or not. In addition, it is typi-cal in Iraq now for a divorcing woman to receive no more than three months of alimony.

Particularly with the high-profi le le-gal work that she does on behalf of wom-en, Al-Lami’s life is at risk on a daily basis when she is in her home country. Yet, she is determined to return to Bagh-

dad to work specifi cally on behalf of women’s rights because she is convinced that this is the most direct way that she can contribute to rebuilding the society as a whole. In his best-selling memoir Three Cups of Tea, Greg Mortenson also reaches the conclusion that the most di-rect way to improve the lives of people in developing countries is to focus on the education of girls.

Nicholas D. Kristof and Sheryl Wu-Dunn, co-authors of the book Half the Sky: Turning Oppression into Oppor-tunities for Women, note that it is only when women as a group are fully em-powered to enter the workforce that the economy of a country is able to truly reach its potential. They believe that ‘in this century, the paramount moral challenge will be the struggle for gen-der equality in the developing world.’ These authors go on to observe that ‘[b]efore long, we will consider sex slav-ery, honor killings, and acid attacks as un-fathomable as foot-binding. The question is how long that transformation will take and how many girls will be kidnapped into brothels before it is complete — and whether each of us will be part of that historical movement, or a bystander.’

While the struggles of Massachu-setts attorneys pale in comparison to those endured by women in some other countries, it is wise to remember that all levels of discrimination, from the most subtle to the most egregiously blatant, stem from the same evil of somehow valuing one person less than another. Perhaps by reaching out globally to help those in more dire circumstances, we can at the same time learn more about ourselves and which of our own cultur-al assumptions will need to drop away before we can truly achieve equality at all levels. n

President’smessAgeContinued from page 1

In the June issue, Lawyers Journal incorrectly stated on page 5, column 3 that “the Supreme Judicial Court gets 16 to 19 requests for cases labeled ‘further appellate review’ each month.” The actual number of requests ranges from 60 to 90. n

COrreCTION

Massachusetts Lawyers JournaL | july 2010 3

nominations for 2010 adams pro Bono publico awards due July 16

To recognize outstanding commit-ment to volunteer legal services for the poor and disadvantaged, the Supreme Judicial Court’s Standing Committee on Pro Bono Legal Services is seeking nominations for the 2010 Adams Pro Bono Publico Awards.

The deadline for nominations is July 16. Nominations should be sub-mitted to:

Richard McMahon, Esq.The 2010 Adams Pro Bono Publico Awardsc/o South Coastal Counties Legal Services Inc.P.O. Box 2507, 22 Bedford St., 2nd fl oorFall River, MA 02722-2507

Contact Jeanne Marcotte at (774) 488-5942 or [email protected] with questions.

Nominations submitted in 2009 re-main active for consideration in the 2010 awards program.

This year, the prestigious Adams Pro Bono Publico Awards will be presented in a ceremony at the John Adams Court-house on Oct. 27 in conjunction with the American Bar Association’s recognition

of National Pro Bono Week.Named in honor of attorneys John

Adams and John Quincy Adams, the Adams Pro Bono Publico Awards recog-nize individual lawyers, small and large law fi rms, government attorney offi ces, corporate law departments, and other institutions in the legal profession in Massachusetts that have “enhanced the human dignity of others by improving or delivering volunteer legal services to our Commonwealth’s poor and disad-vantaged.”

The Standing Committee on Pro Bono Legal Services will select awardees from among those who have excelled in providing volunteer services in one or more of the following ways:

Volunteer participation in an activ-1. ity or pro bono program which re-sulted in satisfying previously un-met needs or in extending services to underserved segments of the population;Successfully litigated pro bono cas-2. es that favorably affected the provi-sion of other services to the poor; and/orSuccessfully achieved legislation 3. that contributed substantially to le-gal services to the poor.

Established in August 1999, the Standing Committee on Pro Bono Legal Services works to promote volunteer legal work in Massachusetts to help

News from the CourtsLegaLNews

people of limited means who are in need of legal representation, in accordance with SJC Rule 6.1, Voluntary Pro Bono Publico Service (“for the public good”). Attorney Mary Ryan, of Nutter, McClennen & Fish LLP, chairs the committee.

Housing Court-supported tenancy program receives positive review

A report on the Tenancy Preservation Program (TPP) run by MassHousing in partnership with the Housing Court has concluded that the program is highly effective in preventing homelessness among tenants with mental disabilities. The recently-issued report, conducted by the University of Massachusetts Do-nahue Institute, also refl ects that TPP is exceptionally cost effective in pre-venting at-risk households from being evicted as a result of behaviors related to mental disabilities.

“The Donahue Institute Report on the Tenancy Preservation Program con-fi rms that it is a critical resource for preventing homelessness among some of the most vulnerable members of our society,” said Chief Justice of the Hous-ing Court Steven Pierce. “The Hous-ing Court has expanded the program throughout the state, based on the posi-tive outcomes that we have achieved for these families in collaboration with MassHousing.”

The detailed study of 676 TPP cases was conducted from January 2008

Thank You.

Freedom Isn’t FreeDennis J. Calcagno, esq

6 1 7 . 3 2 8 . 8 8 8 8www.northeastmediation.com

Case Evaluation | Full Neutral Panel

“By Declaration Liberty is Born. With Courage She is Nourished and with

Unceasing Commitment She is Guarded”— Eric Schaub

Dennis J. Calcagno, esq6 1 7 . 3 2 8 . 8 8 8 8

www.northeastmediation.com

Case Evaluation | Full Neutral Panel

“By Declaration Liberty is Born. With Courage She is Nourished and with

Unceasing Commitment She is Guarded”— Eric Schaub

Your Service, Your Sacrifice.

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Make the most of your MBA benefits in 2010The Massachusetts Bar Association is

working hard to provide benefits that will

help you every day in the practice of law.

The legal profession is being changed dra-

matically by technology, and we are com-

mitted to making the most of the high tech

benefits that can provide real value to you.

My challenge to you, as we begin 2010,

is to take us up on this. Trying something

new takes energy, and so this is the perfect

By Tric ia M . OliverThe 2009–10 Massachusetts Bar Association House of Dele-

gates met for the second meeting of the association year on

Thursday, Nov. 19 at the Mass Mutual Center in Springfield. The

full agenda indicated a busy start to the association year, as of-

ficers and section leadership brought forth a collection of timely

and relevant proposals for the House to consider.

cOMMiTTee, Task fOrce prOgress repOrT

After calling the meeting to order, MBA President Valerie A.

Yarashus provided her report. She informed the group that she

received word from Gov. Deval Patrick’s office that the closing

of the Bridgewater Treatment Center was put off indefinitely.

The MBA first corresponded with the governor’s office on this

issue in October with a letter in support of keeping the facility

open.

www.MassBar.Org

vOluMe 17 | NuMBer 4 | JaNuary 2010

presiDeNT’s viewvalerie a. yarashus

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See page 2 for a complete liSting of thiS iSSue’S contentS.

MBa hOliDay parTyMBA members and friends meet at the MBA to network, socialize. #

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MBa aNNual cONfereNceMBA brings the confer-ence’s many components back to one spring event. #

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By kelse y saDOff

S itting on a desk in Ben T. Clements’ new law office, next to

a framed drawing from his little girl of the two of them

playing hockey, is an inscribed photo from Gov. Deval Pat-

rick. “To my favorite lawyer,” is scrawled across the bottom of

the photo, which features three smiling attorneys: Clements, Pat-

rick and Michael J. Pineault, who was the governor’s deputy

chief legal counsel.“I have been lucky in my career,” said Clements, who in No-

vember left his position as chief legal counsel to Patrick and

launched his own firm, Clements & Pineault LLP, with

Pineault.Clements, who Patrick calls “the father of ethics reform” in

Massachusetts, is jumping back into private legal practice after

serving three years as the executive branch’s top lawyer.

“I have held a series of challenging and rewarding positions in

the public and private sector and I have really enjoyed moving

from one to the other and the ability to serve in both worlds,” he

said.A graduate of Dartmouth College, cum laude, and Cornell

Law School, summa cum laude, Clements began his legal career

with summer associate jobs in New York and Washington, D.C.,

before serving as a law clerk for the chief judge of the U.S. Court

Ben T. Clements: A Massachusetts attorney’s

experience in political policy and private law

Photo by Merrill Shea

Ben T. Clements spent three years working at the Massachusetts Statehouse as Gov. Deval

Patrick’s chief legal counsel, including shepherding through ethics reform legislation. He re-

cently returned to private practice.

By Bill archa MBeaulTThe Massachusetts Bar Association has

created a task force to put a human face on

the impact that drastic budget cuts are hav-

ing on the courts.The Crisis in Court Funding Task Force

will compile stories of hardship among

public users of the court system and will

present a report to the House of Delegates

meeting in March. If endorsed, the report

will support calls for the Legislature to ad-

equately fund the state court system, which

was cut from an initial fiscal 2009 budget

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MBA launches task force to address crisis in court funding

Criminal legislation, REBA appeal case, medical

marijuana top November HOD meeting agenda

For all your advertising needs

in the Massachusetts Lawyers Journal,

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the Boston Municipal Court adopted it for civil cases. The District Court re-cently decided to pilot LAR in its civil cases, and the Housing Court expects to adopt LAR in the near future. The Land Court has also expressed interest in LAR. “Those courts that have adopted LAR or are considering doing so rec-ognize its potential to benefit attorneys, self-represented litigants, and the court,” notes Judge Dina Fein, special advisor to the Trial Court for access to justice initiatives. “It really is a win-win-win.”

Of the driving forces behind the change of heart are, first, the increasing number of pro se litigants appearing in the state’s trial courts. Self represention slows the legal process at a time when the courts are already groaning under budget constraints. But secondly, there’s the freedom LAR gives attorneys to par-ticipate in a case to an extent that both they and the client control. And far from taking business away, LAR presents the opportunity to represent clients who otherwise would have no representation at all.

For those who have none

LAR permits an attorney, either for payment or pro bono, to assist a litigant on a limited basis without undertak-ing full representation of the client on all issues and events related to the cli-ent’s case.

The benefit to attorneys is that they do not have to make an open-ended commitment to fully represent a client on a case that may drag on for months or years — and not get paid for it. It’s a sensitive issue for lawyers, particularly those in small practices for whom not getting paid on an ongoing, work-inten-sive case can impose genuine economic hardship. Attorneys note that this situa-tion results in lawyers requesting large retainers to make up for the economic risk they are taking. This discourages low- or moderate-income clients from seeking legal representation at all — hence, the increase in the number of pro se litigants.

That’s a real problem. As the Hon. Edward M. Ginsburg, a retired probate court judge who founded Senior Part-ners for Justice, says at the beginning of a two-part LAR training tape, “Ev-erybody began to become acutely aware of the fact that the choice often is not whether somebody’s going to have full representation or partial representation — the choices become full representa-tion or NO representation, because more and more people have been opting to go pro se. And I daresay if you go down to the Suffolk Probate Court, you’ll see over 60 percent of the people are pro se. For laywers to say ‘Well, we’ll only do the whole thing, and you’ve got to pay us for the whole thing, or, fry,’ the peo-ple said, ‘We’ll fry!’ to be quite honest about it.”

Since that training tape was made, the percentage of pro se litigants in Suffolk County has increased to 70 percent.

Better justice“The benefit to the court is sig-

nificant,” says Chief Justice Paula M. Carey of the Probate and Family Court.

“People are more informed, pleadings are better prepared, even if we have a temporary order stayed, that sets the stage for things to settle.” She adds, “I would rather have someone [represent-ed] from start to finish, but this is an op-portunity for those who wouldn’t have any [representation].”

Fein notes that many lawyers report that LAR has enhanced their ability to provide legal representation, on both a pro bono and a fee-for-service basis. It allows a pro bono attorney to provide meaningful assistance while making a limited and predictable commitment. Entrepreneurial fee-for-service attor-neys “are incorporating LAR into their marketing, and understandably so,” she says. “While full representation with commensurate retainers might be out of reach for many individuals, those same prospective clients may well be able to pay an attorney a flat fee for limited rep-resentation. LAR recognizes this reality, to the great benefit of our profession.”

Lar and access to justice

LAR is one of the four priority proj-ects identified in the Interim Report on Access to Justice Initiatives in the Trial Court issued in January. Protocols and procedures for the use of LAR are es-tablished by each court department.

Fein says enhancing access to justice in the state’s trial courts requires the de-velopment of tools to facilitate effective self-representation, and increasing the pool of available advocates for litigants. “The initiative’s Task Force on Limited Assistance Representation, chaired by Probate and Family Court Judge Linda Fidnick and Housing Court Adminis-trative Attorney Allison Cole, has done terrific work in promoting the role of LAR to help address these challenges, and in so doing has created a wonderful opportunity for the bar,” she says.

Lawyers weigh in“It can be enormously profitable,”

says Laura Unflat, a family law attorney based in Wellesley. “You take the cases you want and help the people you want, and get paid for it.” In the course of an initial consultation with a client, Unflat makes a determination as to whether the case lends itself to LAR. If so, she fol-lows up with LAR forms (available on the Massachusetts courts Web site) and a letter of engagement and a checklist. She usually does not meet in person with the client again, but does every-thing by phone.

LAR can also be used to help an-other attorney’s client if the other attor-ney is temporarily unavailable. Walpole attorney Jessica Baker has done a lim-ited appearance for a colleague’s client when the colleague’s client needed to get child support.

“It would be great if they had it at every court,” she says, noting that in-experienced pro se litigants often make mistakes that can’t be undone. “It takes a load off the judges; they can’t ‘as-sist’ the pro se litigants but they have to guide them through the process. [LAR] speeds things along. You don’t see judg-es sending them back out and having them come back in.”

Stig Bolden, a Woburn divorce law-yer with a two-person practice, says the upfront costs of LAR can be signifi-cantly less than those for full represen-tation because of the reduction of risk. Additionally, he says, LAR can be used for crucial temporary orders that “often set the stage for the rest of the case.” An attorney can execute the temporary orders, get off the case, and if it goes unresolved, can re-enter for a pre-trial conference. However, he says, “Law-yers need to play by the rules — enter an appearance, then withdraw at the end of the event.”

Training materials for LAR confirm the importance of a definitive with-drawal point. Bolden says he sometimes works into the fee agreement the allow-ance that he will participate in some brief conference with the client after the LAR event. “Looking at it from a consumer perspective, the client has paid you real money, and the lawyer has to be aware that the clients are looking for value. You must balance your strong obligation to comply with all the ethical rules [of representation] with the reali-ties of clients that like to call.”

LegaLNews Law Á La Carte

LimitedAssistAnce representation Continued from page 1

How LAR benefits the court systemLimited representation does not mean limited liability. It’s the lawyer’s responsibility to make sure the client un-derstands all of the potential of the client’s actions. Only when the client knows the likely benefits and risks of any action can he or she make a decision in his/her best interest. A lawyer must advise of possible consequences even if the client does not ask. A client who is resistant to discussions of particular topics — such as money — is not likely a good candidate for LAR.

You must have a realistic picture of the client’s ability to self-represent. Clients who do not understand and who may be unable to give informed consent to the limitation on scope, are probably not good candidates for LAR. Clients need sufficient proficiency in English, and the sophistica-tion and skill to handle complex issues. It’s up to you, as the professional, to determine whether or not a client is up to the task.

LAR is not meant for test-drivers. What is your legal expertise? Don’t be tempted to use LAR as a learning experience in matters of law outside your expertise, in which you may be unable to advise the client on possible outcomes. See first item above.

Limited scope must be fully docu-mented. The most critical part of an LAR agreement is delineating when and how the engagement ends. Attorneys with clients who seek additional (usually, emergency) services above and beyond the LAR engage-ment, and who go on to perform those services without an updated agreement, risk trouble for themselves and their clients. The working relationship with the client must be such that the client respects the “limited” in LAR. Files must also demonstrate the discussion over any changes in scope.

LAR cannot predict every outcome. If a case goes to trial, it is incumbent upon the LAR attorney to explain to the client that it’s not possible to accurately predict how a judge may rule in a particular case. Additionally, the LAR attorney must take into account clients’ expectations of what occurs in court, which may be shaped by court dramas on TV and in movies.

Checklists and flow charts — love them or hate them? To function properly, the LAR process benefits greatly from checklists delineating the attorney’s and cli-ent’s duties, as well as flow charts to docu-ment progress. Checklists and flow charts should be tailored to your specific needs.

How do you feel about taking credit cards? General-representation attorneys are wary of this when used for up-front re-tainers because it may signal that the client has limited funds on hand. However, pay-ments for LAR services are generally smaller per increment, and thus easier to control.

Task-based or hourly? And then what? You can charge an hourly rate or a task-based flat fee, but if you choose an hourly rate, you should take into account that your responsibilities for LAR work are the same as your responsibilities for full-service work. If you do draft or research work outside the client’s presence, have a minimum number of hours in trust that can be replenished.

is Lar right for you?things to consider BeFore jumping in

While she favors full representation over LAR, Chief justiCe PAuLA M. CARey says LAR has improved the legal process, particularly in family Court.

hon. DinA fein says LAR’s effectiveness should be judged by the nature of the case, not the focus of a particular trial court.

“Without LAR, clients lose because they don’t

know what they are doing, and lawyers lose

because they get no revenue from

these cases.”joAnnA CobLeigh,

Attorney

“The benefit to the court is significant. People are more informed, pleadings are better

prepared, even if we have a temporary order stayed,

that sets the stage for things to settle. I would

rather have someone [represented] from start to finish, but this is an opportunity for those

who wouldn’t have any [representation].”hon. PAuLA M. CARey,

Probate and Family Court Chief Justice

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7



“I can’t see it helping in [juvenile court],” says Joanna Cobleigh, a probate lawyer who sometimes practices in ju-venile court. “I don’t see where it would help in any type of criminal case. I could see it helping in a civil case, however,” — helping to draft a complaint, for ex-ample. But in terms of representing someone in a contempt case, she notes, she has found it diffi cult to do so and still maintain LAR. Additionally, it’s still incumbent upon the LAR attorney to make sure all the facts and issues in a pleading are credible.

“You can’t do complete discovery and you certainly don’t want to sign the fi nancial statement without a full dis-closure/investigation. You just have to make sure the client understands they need to be truthful in all aspects of the pleadings as well as the fi nancial state-ments/disclosures,” she says.

All in all, though, the process works well, Cobleigh notes. “I think pro ses are more likely to hire an attorney to do some piece, so it actually increases at-torney revenue. Otherwise, they don’t hire anyone and we all ‘lose out.’ With-out LAR, clients lose because they don’t know what they are doing and lawyers lose because they get no revenue from these cases.”

the “L” in LarWhile most of the experience so

far with LAR has been in Probate and Family Court, Fein says that LAR’s suit-ability is not determined by a particular court, but by a particular case — wher-ever and whenever an attorney can pro-vide meaningful assistance, pro bono or fee for service, by taking on just part of a case.

“There are any number of cases, in-cluding family, housing, debt collection and other civil cases, in which an attor-ney’s involvement at a key point in the case can be of enormous benefi t to the parties and the court — with the idea be-ing that aspects of the litigation before and after that key point can be managed

effectively by the self-represented liti-gant,” Fein said. “Examples that come to mind might be a pre-trial conference in a divorce case; a summary process tri-al or mediation; and a motion to dismiss in a debt collection case.”

Crucial to LAR’s success is for client, lawyer and court to understand the limits of the representation, Fein said. “Neces-sarily that means that LAR is best suited to discrete events or issues, with clear boundaries. That can mean everything from ‘ghostwriting’ a single pleading to attending a single hearing. LAR is less well suited to those aspects of litigation that cannot be clearly circumscribed. By way of example, an attorney might be more comfortable agreeing to draft and serve one set of interrogatories, which is self-limited, than agreeing to ‘conduct discovery,’ which can be quite open-ended. Again, however, the key is for the retainer agreement to delineate the scope of the presentation very clearly, and for the attorney’s limited court ap-pearance, when required, to be consis-tent with the retainer agreement. And, of course, there’s nothing preventing an attorney and a client from renegotiating the scope of their relationship — enter-

ing into a new agreement as the case de-velops — assuming they reduce the new agreement to writing.” n

Christina P. o’neill is custom publications editor for the Warren group, publisher of Massachusetts Lawyers Journal.

“It would be great if they had it at every court. It takes a load off the

judges; they can’t ‘assist’ the pro se litigants but

they have to guide them through the process. [LAR] speeds things along. You don’t see judges sending them back out and having them come back in.”

LAuRA unfLAt, Attorney

Sheff Law Offices, P.C.

Te a m ap p roac h

cu T T i n g ed g e advo c ac y

Su p e r i o r re S u lT S

Ten Tremont Street, Boston, MA 02108617-227-7000 www.shefflaw.com

A Sixty Year Tradition of Representing

the Seriously Injured

Integrity • Compassion • Excellence

LimitedAssistAncerepresentationContinued from page 5

through June 2009 and involved 732 adult tenants, 581 minor children and 106 adult children. The study concluded that the average cost of a TPP case was just $2,377.

TPP was started by MassHousing in 1999 in Springfi eld and has since ex-panded statewide to all fi ve divisions of the Housing Court. TPP attempts to pre-vent homelessness by addressing tenancy problems of vulnerable residents who are at risk of eviction for lease violations resulting from mental illness, substance abuse, mental retardation, elderly demen-tia or other mental impairments.

TPP functions as a neutral party be-tween the landlord and tenant. In con-sultation with the Housing Court, TPP works with the property owner and ten-ant to determine whether the disability can be reasonably accommodated and the tenancy preserved. If the tenancy cannot be preserved, TPP can assist the tenant in transitioning to other suitable housing.

TPP is a collaborative effort between MassHousing, the Department of Hous-ing and Community Development, Ex-

ecutive Offi ce of Health and Human Ser-vices, Executive Offi ce of Elder Affairs, and regional social service providers.

trial Court green team accomplishments highlighted, new chair announced

Chief Justice for Administration & Management Robert A. Mulligan an-nounced a change in leadership and highlighted the many accomplishments of the Trial Court Green Team at the en-ergy task force’s meeting in late May. He advised the interdepartmental group that Chair Margaret Cavanaugh of Court Capital Projects has decided to retire and will transition team leadership to Linda Rowe of Human Resources and chair of the Recycling Subcommittee.

“In just two years, this committee has enabled the Trial Court to make tremen-dous progress, including major reduc-tions in energy and utility expenses,” said Mulligan. “Margaret Cavanaugh has led this effort with energy and enthusiasm that has inspired the subcommittee chairs, the entire team and environmentally-con-scious volunteers across the Trial Court.”

Mulligan presented Cavanaugh with a certifi cate of appreciation and thanked her for her leadership. He also expressed

confi dence that Rowe will continue the team’s positive momentum.

Mulligan highlighted the efforts of Energy Subcommittee Chair Judge Ther-ese Wright and Communications Com-mittee Chair Michael O’Loughlin and commended the energetic and creative participation of all team members. The team has worked closely with Court Fa-cilities and Court Capital Projects and collaborated with DCAM and the Divi-sion of Energy Resources, particularly the Lead by Example Program

Mulligan reviewed a number of Green Team accomplishments that resulted in the Trial Court’s receipt of the Leading By Example Award, which was presented in October to only two statewide entities by the Executive Offi ce of Energy and Environmental Affairs (EEA) and the De-partment of Energy Resources (DOER) at the Statehouse.

Green Team accomplishments include the following:

Launched joint program of Energy •Performance Contracting Projects on state-owned courthouses; three projects to plan energy consumption reduction in concert with DCAM making capital investment repairs and replacements that will be paid for by energy savings;Introduced paper recycling at every •state-owned court location. Revised waste collection contracts to expand

to single stream recycling with plas-tic, glass and metal, as feasible;Collected more than 48,000 pounds •of e-waste through pilot effort in the BMC, which was expanded across the Trial Court for a net savings of $42,000;Reduced energy costs by $2.9 mil-•lion in fi scal 2009 and projected an additional $1.5 million reduction in fi scal 2010 in the use of electricity, gas and water/sewer, based on Court Facilities analysis;Implemented demand response pro-•gram at eight large courthouses to re-duce usage of electricity in the event of a power emergency;Conducted green fairs in Worcester •and Plymouth; Produced quarterly e-newsletter for all Trial Court em-ployees to expand awareness and provide energy conservation tips;Collected 200 Cell Phones for Sol-•diers with assistance of 40 employee volunteers;Introduced statewide fl uorescent •bulb and ballast recycling program; andMet LEED (Leadership in Energy •and Environmental Design) certifi -cation requirements for new court-house projects in Fall River, Taunton, Salem and Lowell. Where opportuni-ties exist, LEED Silver certifi cation will be sought. n

To review Massachusetts court guidelines and reports, go to mass.gov/courts.

neWsFromtHecoUrtsContinued from page 3

For all your advertising needs

contact Mark Schultz.

(617) 896-5323 [email protected]


by bill ArchAmbeAult

Against the setting of William Shake-speare’s Henry V, ex-officials from Pres-ident George W. Bush’s administration defended the legal and moral basis for expanding executive powers at the onset of the War on Terror.

The 10th annual Shakespeare and the Law — a dramatic reading of Henry V followed by a panel discussion — fea-tured a frank and pointed debate over the justification for going to war and the ex-pansion of powers in the name of keep-ing America safe.

“Shakespeare’s telling us something about the law and the decision to go to war,” said Daniel J. Kelly, who produced and moderated the event. He is a partner at McCarter & English LLP and chair-man of the Boston Lawyers Division of the Federalist Society.

The June 15 event, which was spon-sored by the Federalist Society’s Boston Lawyers Chapter, Commonwealth Shake-speare Company, the Massachusetts Bar Association and McCarter & English LLP, attracted hundreds of people to the Cutler Majestic Theatre in Boston.

Featured guests included two Bush administration officials: event host and Massachusetts native Andrew H. Card Jr., who served as White House chief of staff; and John Yoo, who authored the in-famous memos justifying the legal use of torture against enemy combatants when he was a deputy assistant attorney gen-eral in the Office of Legal Counsel of the U.S. Department of Justice.

Card, who noted that he had been the one to interrupt Bush as he was reading a book to an elementary class to relay the news that America was under attack on the morning of Sept. 11, 2001, said that as Bush received the news, he must have thought back to his inaugural oath to “preserve, protect and defend.”

Yoo, now a law professor at the Uni-versity of California at Berkeley, has been vilified by the political left for au-thoring the so-called “torture memos” criticized by the Justice Department’s Office of Professional Responsibility. He strongly defended the president’s right to expansive wartime powers.

He also found himself on the defen-sive against other panelists.

Suffolk University Law School pro-fessor Michael Avery started the panel discussion by musing, “Wouldn’t it be interesting if we could have the bard pen a play about war in the era of George II?”

Avery had harsh words for Yoo, tell-ing him, “If you make war on the Con-stitution, you make war on the country,” accusing him of conspiring against the Constitution, to boisterous applause from the audience, prompting Kelly to remind the audience that this would be a civil discussion.

Yoo, who joked that it was refresh-ing to leave the “people’s republic” of Berkeley for a “more moderate” place like Boston, noted, “The play is a won-derful commentary on the tensions be-tween law and war.”

He criticized the scrutiny that was paid to the legal justifications for waging the war in Iraq, for example, noting that if America had intervened in Rwanda to prevent that country’s genocide, it would

have been a moral but illegal war.“We’ve lost a lot of the richness of

debate about whether war is just because we’ve become focused on whether war is legal,” Yoo said.

He also defended the expansion of war powers and a president’s need to act above the law when necessary to protect the country, alluding to Henry’s deci-sion to execute his French prisoners af-ter the battle of Agincourt out of concern that the French prisoners outnumbered Henry’s English soldiers and could have risen against them.

There was discussion about President Obama’s embrace — after he was elect-ed — of controversial Bush policies such as detaining potential terror suspects at Guantanamo Bay, warrantless wiretap-ping of American citizens and rendition.

Card offered a simple explanation for Obama’s change of heart from campaign trail criticisms of Bush’s policies to his Oval Office continuation of them.

“You’re much smarter the day you take the oath of office than the day you’re elected,” Card said, explaining how re-ceiving information in classified briefings usually changes a president’s perspective,

adding that Sept. 11 changed the playing field. “The War on Terror challenged our constitutional understanding of the role of the president.”

Jeff Jacoby, a conservative colum-nist for The Boston Globe, illustrated the dilemma facing presidents over whether to wage war on moral or legal grounds by suggesting that the strongest case for invading Iraq would have been the humanitarian argument for stopping Saddam Hussein, who was torturing and killing his own people. Jacoby noted that in retrospect, Franklin Delano Roosevelt could have acted sooner to prevent the Holocaust.

“So much of what we think gives le-gitimacy to wage war isn’t decided until after the war,” he said.

Avery, who suggested that the deci-sion to wage war should not be left to the whims of an individual leader of a pow-erful country, but rather, pass muster with international standards, told Yoo, “I’m as disappointed that (Obama) is continu-ing the Bush policies as you are thrilled by it.”

Yoo said that countries do and should

make decisions that end up changing how and when war is waged. “I think it’s naïve to say that powerful countries don’t drive the laws of war in their national in-terests.”

U.S. District Court Judge Rya W. Zo-bel took issue with Yoo’s argument: “It seems to me that Henry wanted to go to war and then found a reason to do it,” she said, adding that following that course of action can lead to lawlessness.

Former Massachusetts Lt. Gov. Kerry Healey noted that the panel discussion revealed the inadequacy of international and domestic law to govern the decision to wage war. “Our current rules aren’t adequate. They don’t reflect what exists,” she said. “So where do we go?”

Jay B. Stephens, who served as as-sociate attorney general of the United States under Bush in 2001 and is now general counsel at Raytheon Co., said a leader determined to go to war would find a legal justification. But just as trou-bling, he said, is relying on a moral im-perative to justify war.

“If we rely on morality for when we go to war, what is the limit for that?” n

LegaLNews ShakeSpeare and the Law

Bush officials justify war, presidential powersat 10th annual Shakespeare and the Law event

Photos by Katherine Castro

Producer and moderator Daniel j. Kelly describes the play against an image of Laurence olivier as henry V. seated are the cast members for the dramatic reading.

the cast and panel of shakespeare and the Law’s Henry V.

jay b. stephens, portraying King henry V, proposes to former Lt. gov. Kerry M. healey, performing as Katherine, during the staged reading.


The Massachusetts Bar Association honored Iraqi attorney Sua’ad Abbas Sal-man Al-Lami for her work as a global leader in equal rights with a Public Service Award on May 25.

Al-Lami has made it her life’s work to advance women’s rights in Iraq. Voted the 2008 Iraq Female Lawyer of the Year by the Iraq Women’s Foundation, she received the 2009 International Women of Courage Award from U.S. Secretary of State Hillary Rodham Clinton and First Lady Michelle Obama.

She is currently working toward her LLM in International Law at the Univer-sity of Minnesota Law School, where she

serves as a Hubert Humphrey Fellow.“The Public Service Award is present-

ed to individuals for their contributions to their community and for furthering the pub-lic understanding and respect for the law and showing extraordinary leadership and dedication to improving the administration of justice,” said MBA President-elect De-nise Squillante, who worked closely with Al-Lami’s host, the Hon. George F. Phelan of the Probate and Family Court, to coordi-nate Al-Lami’s visit to Massachusetts.

Al-Lami’s trip spanned several days, during which she met with Gov. Deval Patrick, participated in a roundtable at Harvard’s Kennedy School, and attended

a host of meetings with key leaders in the Massachusetts legal community.

At the May 25 event, co-sponsored by the Massachusetts Association of Women Lawyers, Phelan spoke of Al-Lami’s fear-lessness. “The magnitude of what she has done is magnifi ed by where she’s done it,” he said.

Following her acceptance of the MBA award, Al-Lami addressed the crowd and thanked everyone for “all of this kindness.” After sharing her own inspiring crusade to advance women’s rights in Iraq, she sug-gested others follow her lead. “I encourage more women to be involved in women’s rights issues.” n

Iraqi attorney Al-Lami recognized by MBA as women’s rights trailblazer

The Visiting Lawyer Program pro-vided legal advice and information to two dozen veterans and their relatives on June 17 at the Holyoke Soldiers Home, the most well-attended pro-gram yet.

The free program is part of the Massachusetts Bar Association’s Serving Our Veterans in the Law ini-tiative, which includes a free weekly call-in service for veterans struggling with state and federal benefi t appeals. Qualifi ed veterans can call (617) 338-0572 on Mondays from 3 to 5 p.m. and be matched up with attorneys who agree to represent their case free of charge.

The June 17 Visiting Lawyer Pro-gram, which was the third one held in the last two years, was the best at-tended, as eight volunteer attorneys answered veterans questions for three hours about VA survivor benefi ts, burial, eviction, divorce, fi ling for bankruptcy, educational debt, disabil-ity benefi ts, wills, medical malprac-tice and unemployment. Each veteran, who had to register in advance, was given 15 to 20 minutes of face-to-face time with a volunteer attorney.

“What this program and the Vet-erans Dial-A-Lawyer program show is that there are legal issues that vet-erans — both old and young — are facing that need to be addressed, and this allows our members to give back to this group in a comfortable com-munity setting,” said MBA Director of Community and Public Services Elizabeth A. O’Neil.

The 24 veterans were all from Berkshire, Hampden, Hampshire and Franklin counties. Nine of the veter-ans served in the Army and six in the Air Force, while the rest served in the Navy, Marines and National Guard.

The program has helped about four dozen veterans in all, and is organized when a veterans group requests it. This was the last program scheduled for the 2009-10 association year.

O’Neil said that the veterans ser-vice offi cers in the region did a good job encouraging veterans to register for the free legal help.

“What was excellent about this program was that the veterans left feeling like their issue was resolved or that they knew where they needed to go next,” O’Neil said. “The attor-neys felt very good about how they spent their afternoon, and for the (MBA) staff, everyone felt like they gave something back.”

The Visiting Lawyer Program is provided at no charge as a public service of the MBA with the fi nan-cial support of the Massachusetts Bar Foundation, the philanthropic partner of the MBA. The MBA acknowledges its partnership with the Department of Veterans’ Services and Shelter Legal Services.

Veterans seek help in largest turnout yetfor program

iraqi attorney sua’ad Abbas salman Al-Lami is presented with the MbA’s Public service Award in celebration of her work as a global leader in equal rights. from left to right are MbA President-elect Denise squillante, MbA President Valerie A. yarashus, Al-Lami and the hon. george f. Phelan.

Photo by Jeff thiebauth

Probationers rarely take extraordinary steps to demonstrate that they did not vi-olate the terms of their probation when confronted by a machine that suggests that they consumed alcohol. Such was the case in the Commonwealth v. Anthony Galluccio probation surrender case in January of 2010, currently under appeal to the Appeals Court. In preparing this ar-ticle, I reviewed the probation surrender hearing transcript, the hearing exhibits, technical specifi cations for the fuel cell in an alcohol breath-testing device, over 20 scientifi c journals which documented the science of EtG testing for ethanol use, and the appellate brief fi led by Charles Ogletree.

On Friday, Dec. 18, 2009, former Massachusetts State Sen. Anthony D. Galluccio was placed on probation in a matter that involved leaving the scene of an accident. The court ordered him to re-main alcohol free, and submit to random testing for alcohol.

In the afternoon of Monday, Dec. 21, 2009, Galluccio was working in his home offi ce when Cambridge’s chief probation offi cer arrived at his home in order to in-stall a device referred to as a “Sobrietor.” The Sobrietor is a machine that obtains, measures and reports the alcohol content of a breath sample from the probationer. The machine verifi es the identity of the person through a voice recognition sys-tem built into the machine.

At the surrender hearing, Michael Ja-cobs, the program manager for the Bos-ton Electronic Monitoring Center who installed the Sobrietor, testifi ed about his interactions with Galluccio — that he did not observe any of the indicia of alcoholic beverages — no odor of an alcoholic bev-erage, no slurred speech, glassy eyes or any indication of impairment.

Jacobs testifi ed at the probation sur-render hearing that when Galluccio fi rst learned that the Sobrietor reported posi-tive results, that Galluccio asked for a blood test. Galluccio could not have his blood tested without the permission of the Probation Department, and his re-quests that day were not allowed.

The Sobrietor is not an evidentiary testing device. By regulation, results from a Sobrietor breath test are not admissible in a criminal trial. When an approved evi-dentiary machine is used to test breath for alcohol, such measurements are acknowl-edged to be imprecise.

Galluccio’s fi rst test registered a .037 on the Sobrietor. Three minutes after the fi rst reading, a second value of .033 was obtained on the same Sobrietor. If these two readings were precise and accurate, then Galluccio would have been eliminat-ing ethanol from his body at a rate of .004 in three minutes, or .08 per hour. An elim-ination rate of .08 g/dL per hour would be unprecedented in the science, and the rate is more likely attributed to the error in the reported results themselves.

thomas e. Workman jr. teaches scientifi c evidence at the university of Massachusetts Law school at Dartmouth. he testifi es on breath testing science and has published on the topic of breath testing for ethanol in suffolk Law school’s Journal of High Technology Law. he was retained by and consulted with friends of Anthony D. galluccio, but did not consult with counsel at trial or on appeal, and he was not compensated for writing this article.

by thOmAS e. WOrKmAn Jr.

Violating the ‘alcohol-free’ probation requirementLearning from the Galluccio matter

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Bar News


Valerie A. Yarashus is wrapping up her year as president of the Massachu-setts Bar Association the way she began: mindful of the past as she plans for the future.

From the very start of her 2009-10 term, Yarashus spoke about the impor-tance of bridging the goals of the asso-ciation’s founders with the opportunities facing the organization and its future leaders.

“To me, it feels like it’s been a phenomenal lead-up to the MBA’s centennial year, which is monu-mentally significant,” Yarashus said. “Access to justice and diversity have been key priorities this year, just as they were to the founders and have been for the past 100 years.”

In addition to those ongoing issues, Yarashus said that technology is playing an increasing role in what the MBA can offer its members. Today, those services include Twitter and LinkedIn, and MBA On Demand, which allows lawyers to experience CLE programs, conferences and events like Bench Bar Forums and Annual Conference keynote speeches, remotely,

“It’s exciting to implement these technological advances, and to see how much members all across the common-wealth will benefit from them,” she said.

In addition, two recently completed projects were of significant importance, she said.

The first was the completion of the Crisis in Court Funding Task Force, to help the Legislature and media under-stand the extent of the problems caused by cutting court funding. The report con-veyed stories from court officials about how inadequate funding affects citizens every day.

Supreme Judicial Court Chief Justice Margaret H. Marshall thanked Yarashus in a June 7 letter: “On behalf of the Jus-tices, I write to commend you, the Mas-sachusetts Bar Association and the mem-bers of the Crisis in Court Funding Task on the excellent Report of the Task Force that was recently issued … Your Report makes [the] case [for adequate funding] clearly and eloquently, with numerous examples of how justice is being delayed, often for those who may need it the most … You have demonstrated exceptional leadership throughout this time of crisis, for which I am most grateful.”

The second project succeeded in overhauling the MBA’s bylaws, which were approved at the House of Delegates meeting on May 19 and are set for a vote at a membership meeting on July 21.

“The bylaw revision was one of the most important projects we completed,” Yarashus said. “It felt absolutely critical for me to get the Mass. Bar positioned to have the best centennial year anyone could imagine.”

Yarashus and President-elect Denise Squillante have worked together closely

on the MBA’s centennial plans.“Valerie and I began the year as what

I have referred to as ‘Team Centennial,’ Squillante said. “Her leadership this year has laid the foundation for the associa-tion to move forward with a year of 100th anniversary statewide celebrations. Val-erie began her year with certain goals to accomplish, among them, governance and new bylaws. Through her leadership, the association will be stronger moving forward in the coming years.”

In preparing her remarks for the pass-ing of the gavel ceremony at the May 19 HOD, Yarashus said she realized that it would be the first time the association’s leadership would extend from one wom-an to another.

“I am thrilled that she and I were able to be one of the ‘firsts’ for the asso-ciation,” Squillante said about the MBA’s first consecutive women presidents.

“I was excited to be passing the gavel to another woman,” Yarashus said. “De-nise and I have always been very inter-ested in keeping inclusiveness at the top of our minds in making appointments.”

For Yarashus, the creation of the Tiered Community Mentoring program was a personally satisfying endeavor to plant the seeds for diversity in the pro-fession.

Launched by the MBA’s Diversity Task Force in October, it matched up practicing lawyers, Suffolk University Law School students and students from

Roxbury Community College and John D. O’Bryant High School in Roxbury. Yarashus has already committed to serv-ing as a mentor in next year’s program.

Yarashus said she does not plan, however, to continue attending the monthly meetings of the MBA Leader-ship Roundtable. She started the pro-gram, with Past President Edward W. McIntyre, in which select members of leadership read and discuss books about leadership and organization. While she values the discussion and interaction, she said it’s important to provide the organization’s future leaders the oppor-tunity.

“I’m hoping that over the next few years, the Leadership Roundtable will develop into a full leadership institute,” she said, like those run in some states where people apply to be accepted and go through yearlong training. “This way, the roundtable itself will be able to lay the foundation for other future leaders.”

It’s also been an active year for the MBA on the legislative front, with the association advocating positions on a number of bills, in addition to the regu-lar defense of judicial independence and adequate court and legal aid funding.

Yarashus looks back on her year, endeavors

yarashus addresses guests at her president’s reception in september 2009.

from left to right: yarashus; MbA Diversity task force Co-Chairs judge Angela M. ordoñez and April C. english; u.s. Attorney Carmen ortiz; and MbA Civil Litigation section Co-Chair Kimberly y. jones.

Bar News

by bill ArchAmbeAult

yarashus, left, passes the president’s ceremonial gavel to President-elect Denise squillante at the hoD meeting on May 19.

preSident’S 2009-10 term


“It’s been very rewarding for me to work on legislative issues across all practice areas,” she said, noting MBA efforts on requiring liquor liability in-surance for all commercial establish-ments that serve alcohol, Criminal Offender Registration Information (CORI) reform and securing MBA representation on both the Probation Task Force and an alimony task force created by the Joint Committee on the Judiciary.

In addition to taking on the presi-dent’s commitments, Yarashus also joined the firm of Meehan, Boyle, Black & Bogdanow PC in Boston where she credits her colleagues for supporting her as she balanced work commitments and presidential duties.

“I truly feel like I have the best of all worlds here. Each and every one of my colleagues is truly creative, collab-orative and brilliant in his or her own, unique way,” she said, noting that sev-eral of the firm’s partners have served as MBA president over the years. “They know exactly what it takes to have a successful presidency.”

Other projects, like the Task Force on Peremptory Challenges and the Plain English Jury Instruction Task Force, have been concerns of hers for years and will be ongoing efforts.

Bringing back a full program for the Annual Conference, including the “magical moment” during the key-note speech by the Southern Poverty Law Center’s Morris Dees, was one of the many events and initiatives made possible by staff and volunteers, she said. She estimates she made more than 400 presidential appointments during her term, for everything from section leadership to task forces and committees.

“I feel so grateful to so many peo-ple on so many levels,” she said, not-ing that she’s also eager to return to balancing family and work without as many MBA responsibilities.

Yet, she said, “As much as I look forward to more evenings at home, it has been incredibly fulfilling to work on issues I really care about. More

than anything, it’s been humbling and deeply satisfying to look back to the founders’ vision and see that, even a century later, we share their commit-ment to justice and fairness, diver-sity and professionalism. I think they would be proud to see the bridges we’ve built. And, hopeful for what is yet to come.” n

AboVe:yarashus, fourth from the left, with the members of her firm, Meehan, boyle, black & bogdanow PC in boston, at her president’s reception.

Left:yarashus presented sjC Chief justice Margaret h. Marshall, left, with the MbA’s Chief justice edward f. hennessey Award on Marshall’s 10th anniversary as chief justice.

Patrick vetoed an additional $11.4 million from the Trial Court’s budget, bringing total cuts from fiscal 2010 to $28.9 million. The Legislature will continue to meet in formal sessions throughout July and the MBA will press for overrides of the governor’s vetoes.

crime BiLLThe MBA has been an outspoken advocate

on behalf of mandatory minimum reform for a number of years. The House passed legisla-tion last month, which centers on reforms to the state’s Criminal Offender Record Informa-

tion (CORI) laws. These reforms would provide greater accuracy, seal re-cords earlier and provide greater clarity in these re-ports.

The Senate passed a broader version in No-vember that, in addition to reforming CORI laws, would grant parole eligi-bility for certain nonvio-lent drug offenders and grant eligibility for work release for those serving House of Correction sen-tences.

The MBA is support-ive of and advocating for

the Senate version of the bill. Both bills are currently under consideration by a conference committee appointed by both branches to work out the differences between the two bills.

The Legislature will end its formal sitting on July 31, 2010. After July, the Legislature will continue to meet in informal sessions for the remainder of the year, where it is highly unlikely that sentencing reform or other sub-stantive measures will be debated. n

LegisLAtion Continued from page 1

MbA general Counsel and Acting executive Director MARtin W. heALy has steered a number of MbA-backed bills through the Legislature this year.

by megAn griffith

Attendees at the Massachusetts Bar Association’s Criminal Justice Confer-ence on June 15 learned about effective sentencing advocacy and details of the parole process from panelists represent-ing the municipal court, the corrections system, the parole board and private practice.

Members of the first panel encour-aged defense attorneys to help their cli-ents achieve the best possible sentence by reaching out to probation officers and prosecutors in advance. Giving them im-portant contextual details about the client and the case can make a big difference in the client’s sentence.

“Even with a mandatory minimum in place, the prosecuting attorney will often consider something else knowing the context,” said Second Assistant Dis-trict Attorney Gerald Stewart. “Don’t be afraid to share something with the pros-ecutor.”

Stewart and Community Corrections Manager John Quinn explained that properly evaluating a client and under-standing available programs would help attorneys argue effectively for alternative sentences before a judge.

“Not everyone can be put on proba-tion; some have to go to jail. Think about whether the client would succeed in pro-bation before getting them there,” agreed Deputy Probation Commissioner Paul Lucci. “If they fail [in probation], they’re facing even more time.”

Lucci gave a detailed explanation of possible resources and accommodations

that make probation an effective option in more cases. Associate Justice Robert Tochka recommended encouraging the client’s family to attend the trial or send support letters. He explained that proac-tive steps such as rehabilitation programs and support networks help the client’s cause.

“No matter how serious the crime is, if you can find a way to guarantee they won’t come back to this, they might take your side,” said veteran defense attorney Randy Chapman.

Members of the second panel, who explained the parole process, spoke to the same theme. Parole Board member

Roger L. Michel Jr. stressed the impor-tance of having prepared a parole plan composed of an expected job, support network and place to live.

“The argument needs to convince the Parole Board to feel comfortable with releasing someone who has already com-mitted a crime back into the community, said Michel. “Understand what the board needs to hear from the inmate. Tell the client they need to make clear things that won’t be listed in jail records, such as their temperament and personality.”

Because inmates seeking parole rarely have the permission or resources to bring counsel to hearings, attorneys

should provide them and parole officers with the resources to prepare for parole hearings at sentencing. Attorneys can also help a client down the road by giv-ing them a brief explanation of the parole process or by sending important notes to the Parole Board regarding important cir-cumstances at sentencing.

While the Parole Board will ask the inmate about all past offenses, the suc-cess of the hearing will depend on how well the inmate convinces the officers of a firm parole plan, said Michel. “There’s only one thing I’m really going to be concerned about, and that’s what’s going to happen in the future.” n

Left to right: Conference chair and moderator R. Matthew Rickman, Libbyhoopes PC, boston; Roger L. Michel jr., Massachusetts Parole board; Lee j. gartenberg, director of legal services, Middlesex County sheriff’s Department; Patricia L. garin, stern, shapiro, Weissberg & garin LLP, boston; and ina R. howard-hogan, general counsel, Massachusetts Parole board.Photo by Megan griffith

Criminal justice panelists urge reaching out to prosecutors


Bar News

mBa president-elect squillante honored

MBA President-elect Denise Squil-lante, a Fall River native, was honored with the John S. Brayton Jr. Memorial Community Service Award by the Fall River Chamber of Commerce on June 17.

Squillante was one of eight to receive the award — named for a member of one of Fall River’s pioneer families — during a banquet at the Venus de Milo restau-rant in Swansea. The chamber selected Squillante for the honor because of her strong commitment to the community, much like Brayton, who championed the strengths of Southeastern Massachusetts and helped lead tourism on the water-front.

A solo practitioner, Squillante estab-lished her practice of nearly 30 years in Fall River. She concentrates in family law, corporate law, injury and estates, and also provides business and legal con-sulting services to corporations.

A former president of the Fall River Bar Association, Squillante is currently vice president of the New England Bar Association and a member of the Bris-tol County Bar Association Executive Board.

Highly involved with efforts to ad-dress domestic violence in Fall River, Squillante is a former member of the board of directors at the Katie Brown Educational Program, YMCA-Fall River and Domestic Violence Task Force. In addition, she is a former visiting lecturer at Bridgewater State College and Bristol Community College.

CpCs Chief Counsel Leahy to retire July 30

William J. Leahy, who served as chief counsel for the Committee for Public Council Services for more than 19 years,

is set to retire at the end of July.

Leahy had announced his decision to retire in November to allow for his re-placement to be chosen and to work on the tran-sition. Anthony

Benedetti, who has been CPCS general counsel since 1998, will take over as chief counsel on Aug. 2. The chief coun-sel is responsible for day-to-day opera-tions of CPCS.

Leahy, who worked as a public de-fender for almost 36 years, emphasized in his announcement to CPCS staff that

he would not be a lame-duck, but would continue fi ghting for adequate funding to help represent clients.

“… We should be very proud that we have worked together so skillfully to ensure that every indigent client in every case receives the effective assistance of counsel, not some pale pretense,” Leahy wrote.

“The continuation of this magnifi cent accomplishment — and when I say con-tinuation, I do mean to include its con-tinuous improvement — is our greatest challenge, a challenge I have no doubt we will fulfi ll.”

Chief Justices Connolly, pierce honored by BBa

The Boston Bar Association honored Chief Justice Lynda M. Connolly of the Massachusetts District Court and Chief Justice Steven D. Pierce of the Housing Court with Citations of Distinguished Ju-dicial Excellence at the BBA’s Law Day Dinner on May 25 at the Westin Copley Place.

“Chief Justice Connolly and Chief Justice Pierce have distinguished them-

selves as lead-ers of their re-spective courts, dealing with the most immediate and pressing le-gal needs of our fellow citizens, but also as lead-ers in the effort to help the Trial Court Depart-ment determine how best to deliver justice when faced with a severe fi s-cal crisis,” said BBA President Jack Regan.

Two years ago, Connolly

and Pierce were asked to serve as co-chairs of the Trial Court’s Fiscal Task Force. Their assignment was to analyze court operations and make recommenda-tions about how the seven Departments of the Trial Court could make adjust-ments to live within the budget provided by the Legislature while still providing access to justice.

Leading an interdepartmental group of Trial Court leaders for nearly two years, Connolly and Pierce have steered a system-wide effort to reduce expenses and improve effi ciency in response to the fi scal crisis. n

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MbA President-elect Denise squillante, center, after receiving her award, with Chamber of Commerce Chairman Curt nelson, left, and Chamber President and Ceo Robert Mellion, right.

Photo by JaCK DarMoDy


Bar News

Massachusetts Lawyers Weekly and the Massachusetts Bar Association once again came together to present the Ex-cellence in the Law event to celebrate achievements and distinctions in the le-gal profession. The evening event was held at the Boston Marriott Copley Place on May 20.

Following a cocktail reception, a cer-emony featured the presentations of the Excellence in Legal Journalism, Diver-sity Heroes and Up & Coming Lawyer awards. There was also a special presen-tation of the “Lawscars.” Upon arrival, the 300 guests had the option to walk the “red carpet” and be photographed with an oversized “Lawscar” trophy. This was the second year that the “Lawscars” were part of the annual event.

MBA President Valerie A. Yarashus presented The Boston Globe’s John Richardson Ellement with the associa-tion’s Excellence in Legal Journalism Award.

“The MBA and Massachusetts Law-yers Weekly have the unique opportuni-ty each year to recognize a member of the media of his or her contributions in presenting important law-related topics to readers or listeners,” said Yarashus. “Richardson Ellement has covered thou-sands of arraignments and hundreds of trials and has developed a keen knowl-edge of the Massachusetts legal sys-tem.”

Richardson Ellement has been cov-

ering legal issues and breaking news for the Globe since 1986. He has cov-ered the Boston police, ran the Globe’s Suffolk County Court Bureau and more recently served as reporter/editor for the Globe’s Web site, boston.com.

Other award recipients included:

Lawyers weekLy’s Diversity Heroes

Joyce London Alexander, U.S. •magistrate judge (ret.)Roberto M. Braceras, partner, •Goodwin, Procter, BostonTaruna Garg, associate, Murtha •Cullina, BostonSabita Singh, District Court •circuit judge

Lawyers weekLy’s Up & Coming Lawyers

William J. Barabino, Sarah R. Boon-in, Thomas A. Brown, Colby Bruno, Kathleen M. Celio, Juan A. Concepcion, Scott J. Connolly, Eliza Z. Cox, Patience W. Crozier, Melissa Nott Davis, Justin H. Dion, Timothy V. Dooling, Nicole Mu-rati Ferrer, James C. Kennedy, Joshua A. Lewin, Christopher B. Marston, Sejal H. Patel, Mark C. Rogers, Jolie M. Siegel and Lefteris K. Travayiakis.

“LawsCar” reCipientsCourt Officer of the Year:• Jesse Walker of the New Bedford Probate & Family Court

Court Clerk of the Year:• Jennifer Maggiacomo of the Middlesex Probate & Family CourtLaw Professor of the Year:• Mark Pettit of Boston University School of LawLaw Firm of the Year:• Greenberg TraurigSenior Lawyer of the Year:• Ronald Resmini of the Law Office of Ronald Resmini

Best Dressed Lawyer of the Year: •Andrew C. Meyer Jr. of Lubin & Meyer

Co-sponsors of the May 20 event in-cluded the Middlesex County Sheriff’s Department, First Republic Bank, Thom-son/West and Morse Barnes-Brown & Pendleton. A portion of the event’s pro-ceeds went to the Massachusetts Bar In-stitute Public Services Fund. n

‘Excellence in the Law’ honors Globe’s Ellement, profession’s best

Bar Bulletin Board

tReAsuReR Austin P. WAng (Procter & gamble)

seCRetARy/CLeRK Peggy L. ho (LPL financial Corp.)

PResiDent sARAh g. KiM (bingham McCutchen LLP)

ViCe PResiDent eMiLy K. yu (edwards, Angell, Palmer & Dodge LLP)

aaLam names 2010-11 officers and directorsThe Asian-American Lawyers Association of Massachusetts recently announced its

leadership slate for the 2010-11 association year.

aaLam offiCers aaLam DireCtorsJoel Buenaventura (Department of Public Health)

romeo G. CamBa (Massachusetts Superior Court)

edward S. ChenG (Sherin and Lodgen LLP)

Stephen Y. Chow (Burns & Levinson LLP)

JoSephine deanG (Bingham McCutchen LLP)

euGene h. ho (Law Office of Eugene H. Ho)

len a. ho (Upromise Inc.)

allen h. Jun (Ropes & Gray LLP)

Charlotte Kim (Choate, Hall & Stewart LLP) immediate past president

Steven S. Kim (McLaughlin & Kim LLP)

amY linG (K&L Gates LLP)

Joann nGuYen (PricewaterhouseCoopers LLP)

SuSan Y. parKer (Ropes & Gray LLP)

inGrid C. SChroffner (Executive Office of Health and Human Services)

GeoffreY G. whY (Department of Telecommunications and Cable)

Massachusetts bar Association Past President edward W. Mcintyre, left, with brian buckley, recipient of the MbA Community service Award. the award was presented at the Worcester County bar Association Law Day breakfast at the Crowne Plaza on May 3.Photo by PatriCia o. Plasse

the Plymouth County bar Association held its annual Law Day Ceremonies at hingham District Court on May 3. u.s. Rep. William Delahunt, left, gave the keynote speech and was presented with the Liberty bell Award by PCbA President Arthur hassett iii.Photo Courtesy of laura sinClair PhotograPhy

Law Day events

from left to right: MbA President Valerie A. yarashus; MbA Community service Award recipient Richard McMahon, south Coastal Counties Legal services director; MbA President-elect Denise squillante; and bristol County bar Association President Daniel M. surprenant.

mcmahon receives Community service award

Photo by PatriCia o. Plasse

Photo by bethany Versoy

The Boston Globe’s john Richardson ellement accepts the excellence in Legal journalism Award from MbA President Valerie A. yarashus.


Romney’s deputy legal counsel and ex-ecutive director of the Judicial Nominat-ing Commission. “Working in govern-ment instills a need to give back. You see people at their best and their worst every day. And I absolutely get more than I give.”

Flynn-Poppey, an attorney with Mintz Levin, was part of a team of attorneys from the fi rm who, working pro bono, drafted the legislation that offers protec-tion to victims of sexual assault, criminal stalking and criminal harassment.

She is also a board member of Mas-sachusetts Law Review and a founding member of the Animal Law Practice Group (part of the MBA’s Civil Litiga-tion Section). Her involvement in the Animal Law Practice Group came about because of her volunteer work with the MSPCA.

She is able to spend so many hours volunteering in a variety of fi elds in part because Mintz Levin pays more than lip service to pro bono work.

“They really do believe in giving

back,” she said. “They are very support-ive, even to the point of taking time out of billable hours to make sure the [do-mestic violence] initiative passed. If I worked somewhere else, it would be a lot more diffi cult.”

A team from Mintz Levin was already working on legislation to allow victims

of sexual assault to obtain a restrain-ing order against their attackers. At the time, the law allowed only those who were related to, or in a relation-ship with, their at-tackers to apply for restraining orders.

The only recourse for those attacked by strangers or friends was to obtain civil restraining orders, an often expensive and time-consuming process, or to press charges, which could be diffi cult for a variety of reasons.

Flynn-Poppey joined the fi rm about

two years ago, and with her government background and familiarity with legisla-tion, offered to take a look at the draft.

The result was a complete re-write. “We narrowed it, made it more focused,” she said. “And we wanted to take a look at both sides, because it is possible for the defendant to become a victim as well.”

The fi nal version was unanimously approved by the Legislature, then signed by the governor, on Feb. 9, 2010, less than three months from the refi le date. Several victims of sexual assault were waiting for the bill to pass and have already received restraining orders against their attackers. Violation of the orders can result in up to two and a half years in a house of cor-rections. Flynn-Poppey said one woman told her she felt like it was the fi rst time she could leave her house safely. Her at-tacker lives in her community.

“It was probably the highlight of my legal career,” Flynn-Poppey said. “It’s not often that you get to do what you went to law school to do.” n

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Volunteer lawyers answered 387 calls from residents of Berk-shire, Franklin, Hampden and Hampshire counties during the May 26 Western Massachusetts Dial-A-Lawyer program, which was held at Western New Eng-land College School of Law.

Attorneys answer questions on a wide range of legal ques-tions. The service is provided as a public service of the Mas-sachusetts Bar Association.

The program is co-sponsored by Western New England Col-lege School of Law, The Repub-lican, El Pueblo Latino and the Massachusetts Association of Hispanic Attorneys. n

Western Mass. Dial-A-Lawyer volunteers provide free advice

Robert H. Astor•Jesse W. Belcher-Timme•Peter Benjamin•Jeffrey Burstein•Melissa L. Campana•Corey M. Carvalho•Linda A. Condino•Mark David Cress•Mary K. Eaton•Michele Feinstein•Claudette-Jean Girard•Albert Gordon•Lisa L. Halbert•Mary Jo Kennedy•Kimberly Klimczuk•Carl W. Lindley Jr.•L. Jeffrey Meehan•

Amy J. Megliola•Keith A. Minoff•Kelly B. Neubauer•Melissa L. Pagel Ryczek•Timothy A. Reilly•Kara A. Rescia•Katherine A. Robertson•Denise M. Shear•Diana Sorrentini-Velez•Bernadette Stark•John B. Stewart•Spencer A. Stone•Beverly A. Swetcky•Gillian Szlachetka Dubay•Peggy Ann Torello•Jeffrey S. Weisser•

PArticiPAting AttOrneyS incluDeD:


www.MassBarInsurance.orgBoston (617) 338-0581 • Springfield (413) 788-7878

E-mail : [email protected]

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Attendees of the Fourth Annual Pub-lic Law Conference learned about rec-ommended boundaries on governmental use of social media and ramifi cations of the commonwealth’s changes to the Open Meeting Law.

Keynote speaker Robert Nasdor spoke on the interpretation of the OML by the Massachusetts Attorney General’s offi ce. Attorneys from the Massachusetts Infor-mation Technology Division — Deputy General Counsel Stephanie Zierten and Project & Social Media Coordinator Jessica Weiss — presented a session on The Use of Social Media by Government Agencies. The conference, which was sponsored by Public Law Section, was held June 2 at the Massachusetts Bar As-sociation’s Boston offi ce.

While Nasdor acknowledged that municipal offi cials may need clarifi ca-tion on changes to the OML, he said that small adjustments can help munici-palities meet the new requirements. He explained that offi cials should consider three factors determining whether a body must adhere to the OML: the body’s charge, whether the body is formally created, and whether it performs a public function.

The changes to the OML mandate that the chair of an offi cial body post a publicly accessible notice of the meet-ing, along with a list of all reasonably anticipated topics, at least 48 hours in advance. Attendees expressed concern regarding the specifi city of the topics listed, as well as the diffi culty of fi nd-ing an acceptable public location for the notices.

Nasdor recognized these diffi culties and explained that recommendations for municipal procedures would be avail-able from his offi ce in the Division of Open Government shortly after July 1. He also said that different communities would fi nd varying solutions to adhere to the new rules. For example, some might fi nd a waterproof binder to be a good solution for listing notices, while others might consider a large covered bulletin board or monitor to be useful.

In their skills training session, Zi-erten and Weiss described social media boundaries government offi cials should implement to avoid potential legal prob-lems.

“Every tweet is a public record,” said Weiss. “Social media is a tool to achieve communications goals … but right now, it’s very unclear what the im-plications are.”

The biggest barriers to the use of so-cial media by agencies include the OML, public records law and terms of use on certain Web sites. While the terms of service are currently under negotiation with Web sites such as YouTube, agen-cies can fi nd some internal solutions to avoid other problems.

While employers should clearly list their expectations regarding employ-ees’ use of social media, responsibility falls on the employees to live up to these guidelines.

Employees’ behavior online should depend on whether the use of social media is listed as a job function. Best practices should include respecting the agency’s acceptable use policy, listing a disclaimer on Web sites and securing separate social media identities for work and personal use.

Agencies should protect both them-selves and their constituents’ First Amendment rights by clearly stating and enforcing both Web site terms and com-ment policies on social media Web sites. Remaining aware of public accessibility to online collaboration and discussion is also important to avoid OML issues.

All agencies must also adhere to public records law by retaining all infor-mation that appears on the Web site. n

FOUrth annUaL pUBLiC Law COnFerenCeBar News

Public Law Conference addresses social media, Open Meeting Law

Photos by triCia oliVer

fourth Annual Public Law Conference keynote speaker Robert nasdor, director of the Division of open government at the offi ce of the Attorney general in boston.

Conference faculty from the Massachusetts information technology Division: Deputy general Counsel stephanie Zierten, left, and Project & social Media Coordinator jessica Weiss.

by megAn griffith


The Massachusetts Bar Foundation will honor the 2010-11 IOLTA grant recipients and MBF Legal Intern Fellows at two upcoming grantee receptions. Mark your calendars. More information will be forthcoming. n

Save the dates for MBF grantee receptionsBoston reCeptionSept. 305–7 p.m.offi ces of burns & Levinson LLP, 125 summer st., boston

springfieLDreCeption Oct. 74:30–6:30 p.m.Location tbD

Calendar of Eventsmonday,July19District court Survival guide — civil Practice4–6:30 p.m.MbA, 20 West st., boston

tuesday,July20how to handle a residential real estate closing4–7 p.m.MbA, 20 West st., boston

monday,July26employment law basics4–7 p.m.MbA, 20 West st., boston

Wednesday,July28fundamentals of civil motion Practice4–7 p.m.MbA, 20 West st., boston

thursday,July29basics of Developing an estate Plan4–7 p.m.MbA, 20 West st., boston

tuesday,Aug.3handling Depositions with confidence2–5 p.m.MbA, 20 West st., boston

Wednesday,Aug.4mbA monthly Dial-A-lawyer Program5:30–7:30 p.m.statewide dial-in #: (617) 338-0610

thursday,Aug.5immigration law essentials2–6 p.m.MbA, 20 West st., boston

monday,Aug.9effective legal Writing Strategies4–7 p.m.MbA, 20 West st., boston

tuesday,Aug.10basics of Divorce Practice4–7 p.m.MbA, 20 West st., boston

Wednesday,Aug.11Preparing to file a lawsuit4–7 p.m.MbA, 20 West st., boston

monday,Aug.16District court Survival guide — criminal Practice4–6:30 p.m.MbA, 20 West st., boston

Wednesday,Aug.18fundamentals of effective Discovery2–5 p.m.MbA, 20 West st., boston

thursday,Aug.19trial Practice luncheon roundtable SeriesPart i: Pretrial Preparation and Jury issuesnoon–2 p.m.MbA, 20 West st., boston

Second Annual mbA Summer Social5:30 p.m.tia’s, 200 Atlantic Ave., boston

thursday,Aug.26trial Practice luncheon roundtable SeriesPart ii: trial issuesnoon–2 p.m.MbA, 20 West st., boston

saVe tHe Date: 20th Annual family law conferencefriday, nov. 12 to saturday, nov. 13Cranwell Resort, spa & golf Club55 Lee Road, Lenox

Bar News

The Massachusetts Bar Foundation, the philanthropic partner of the MBA, was honored for outstanding service to the adminis-tration of justice by the Boston American Inn of Court at its June 9 Annual Awards Dinner in Boston.

The Inn, whose co-presidents are District Court Justice Hon. Barbara Savitt Pearson and Harvey Weiner of Peabody & Arnold in Boston, was founded in 1990 as Massachusetts’ fi rst Inn of Court and brings together at-torneys, judges, legal educators and law students for the open exchange of ideas and to promote civility, excellence and pro-fessionalism in the profession.

MBF President Joseph P.J. Vrabel ac-cepted the award on behalf of the foundation and presented a video highlighting the mission and work of the MBF.

“The foundation is the legal community’s best kept secret, providing millions of dollars for legal aid programs for the poor,” said Weiner. “It is the state’s premier legal charity and every law-yer should know about it and consider supporting it.”

For more information about the Massachusetts Bar Foun-dation, including a link to the video, visit www.massbarfoundation.org.

For more information about the Boston American Inn of Court, visit www.innsofcourt.org/inns/bostoninn. n

Boston American Inn of Court honors MBF

Photos Courtesy of Matthew e. Miller of foley hoag llP

boston American inn of Court Co-President harvey Weiner (left) presents the outstanding service Award to Mbf President joseph P.j. Vrabel.

boston American inn of Court Co-Presidents Weiner (left) and the hon. barbara Pearson.

The MBA reminds you that the 2009-10 membership year is drawing to a close, and member-ship renewal notices for the 2010-11 year will be distributed soon. As in years past, the MBA offers members two renewal options:

Mail: Renew your MBA membership through the mail with a check or credit card payment. Look for your dues renewal form

to come in the mail in mid-July.Online: Look for a renewal

notice via e-mail in mid-July with instructions on how to renew your membership online. We understand

how valuable your time is and are happy to offer you this time-saving,

green alternative.As always, thank you for your contin-

ued support of the MBA. n

Reminder: Renew your MBA membership by mail or online

featUreD memBer Benefit:

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A Fellows grant of $48,092 from the Massachusetts Bar Foundation, the philanthropic partner of the MBA, has made it possible to continue the Worcester portion of the Supreme Judicial Court’s Judicial Youth Corps program this year. More than one dozen high school students from Worcester are participating in the 14-week program, which includes a seven-week internship.

The program began May 13 with a seven-week orientation to the court system hosted at Bowditch & Dewey LLP in Worcester. The students then complete internships within various Worcester court departments from July 6 through Aug. 20.

“The Judicial Youth Corps program presents a unique and valuable oppor-tunity for us to provide Massachusetts youth with hands-on experience that leads to a fuller appreciation of our jus-tice system,” MBA President Valerie A. Yarashus said.

“The MBA is grateful for the MBF’s continued commitment to this important program, as well as its generosity in funding many other community based-programs that fulfill the legal needs of many underserved citizens of Massa-chusetts.”

Designed for urban high school stu-dents, the Judicial Youth Corps program was established by the Supreme Judi-cial Court’s Public Information Office in 1991. The program teaches young

people about the judicial branch of gov-ernment and fundamental principles of law.

“The Worcester Judicial Youth Corps program would not be possible without the strong commitment of the Massa-chusetts Bar Foundation and Massachu-setts Bar Association, and I appreciate their continuing support and partner-ship with the courts,” Supreme Judicial Court Chief Justice Margaret H. Mar-shall said.

“Nothing gives me greater pleasure than seeing young people engaged in learning about the judiciary’s role in a

constitutional democracy,” Marshall said. “For the past 20 years, the Supreme Judicial Court’s Judicial Youth Corps has provided opportunities for hun-dreds of high school students to learn fundamental principles of law, to form mentorships with judges, lawyers and employees, and to work as paid summer interns in courthouses.”

SJC Justice Roderick L. Ireland has been an advisor to and an ardent sup-porter of the Judicial Youth Corps since it began in 1991. “Each year, I am very impressed with the level of interest and enthusiasm of the students who apply

to be participants of the Judicial Youth Corps,” Ireland said.

“The young people who are selected to be in the program gain an invaluable learning experience. I would love to see this program in every corner of the state. The Massachusetts Bar Foundation should be applauded for their unwaver-ing commitment to the Judicial Youth Corps students.”

The MBF has provided funding an-nually to the program since 2007, when a Fellows Fund grant helped to return the program to Worcester after a long hiatus.

“The foundation is pleased to once again be able to support such a unique and worthwhile program as the Judicial Youth Corps,” Executive Director Eliza-beth M. Lynch said.

“It is so gratifying to see young people not just exposed to the legal system, but immersed in the profession and treated as peers by their supervisors and teachers. For the students, this obvi-ously instills a great sense of pride and purpose.”

When the Judicial Youth Corps pro-gram originally began, high school stu-dents in Boston were eligible. The pro-gram later expanded to Worcester and then Springfield.

In recent years, the program was lim-ited to Boston students due to financial constraints. The Boston Private Industry Council has funded the Boston portion of the program in recent years. n

MBF’s $48,000 grant funds Worcester Judicial Youth CorpsBar News

Photo by elizabeth o’neil

Participants in the 2010 judicial youth Corps program at the Worcester office of bowditch & Dewey.


If Galluccio had been tested on an evi-dentiary machine, a second reading at or between a .01 and a .059 would have been a “precise” measurement by Massachu-setts standards, and would have reported the lower of the two measurements (either a .01, .02 or a .03). The Sobrietor is not certified to this degree of precision, but is configured by default so that results at or below a .025 are considered to be below the level of detection for the machine.

The Sobrietor evidence was the sole evidence of a violation of probation, the court found he violated the condition that required he abstain from alcohol, and Gal-luccio was sentenced to a year in the house of correction. His motion for a stay of sen-tence was denied.

In criminal driving under the influ-ence cases, a defendant has the right to be “immediately” seen by a physician, for the purpose of having an independent test. Such due process rights exist because measurement of blood is the “gold stan-dard” scientific method for measuring the amount of ethanol in the blood of a sub-ject.

The need to be tested immediately is important. In the Commonwealth v. Col-turi decision, the Supreme Judicial Court defined a three-hour interval between driv-ing and measuring alcohol on the driver’s breath to be a reasonable time to take a measurement of ethanol.

The Massachusetts legal press recently reported “SJC justice: ‘Melendez-Diaz’ doesn’t apply to OUI case,” discussing why a blood test can be introduced at a DUI tri-al without a live witness after the medical records are subpoenaed by the common-wealth. While the Commonwealth v. Par-menter decision might be seen to chill the exercise of an independent test (after all, the government may know about the test, and may even have transported the defen-dant to the hospital), an independent test is likely to be distinguished from Parmenter, in that the independent test was performed explicitly for a court proceeding. Whether the commonwealth would be entitled to the test results, or would know absent in-troduction by the defendant that they were not favorable, has yet to be determined.

Of perhaps greater concern is the il-lusory nature of the right to an indepen-dent test. In probation matters, it is rare for the probation officer to be present when a Sobrietor tests positive, even rarer for the probationer to ask for an independent blood test, and perhaps even rarer for the probation officer to remember that request and testify that the probationer asked for an independent test.

The logistics of obtaining an indepen-dent test are often insurmountable. Most physicians do not draw blood in their offic-es. Most DUI arrests occur between mid-night and 4 a.m., and at that time of morn-ing, the only physicians on duty are in an emergency room at a hospital. Getting to see a physician by navigating through the triage of an emergency room, being seen by a doctor, making an appointment for a blood draw, and having blood drawn for a blood test — all within the three hours mandated by Colturi for relevance — is difficult during the daylight hours, and is likely impossible in the early hours of the morning. Fortunately, there are tests that can look back more than three hours.

There is often confusion over what is prohibited when a probationer is required to remain “alcohol free.” The judiciary’s use of the term “alcohol” is often assumed to mean the chemical compound “ethanol”

or “ethyl alcohol.” Ethanol is the form of alcohol found in distilled spirits, beer and wine. There are more than 1,500 chemical compounds in the alcohol family that have nothing to do with alcoholic beverages.

Since a probationer is prohibited from having “ethanol” in their body, the first question is how ethanol might come to be present in the body. The most obvious way is by drinking a beverage such as beer, wine or spirits. But this is not the only way that ethanol can enter the body through the mouth.

Other drinks are not ethanol free, de-spite the commonly held belief that they are. For example, Diet Seven-Up contains ethanol in small portions. High-energy drinks, such as Monster and 180 Energy, contain several times as much ethanol as Diet Seven-Up. Some foods contain etha-nol, such as breads, pizza, English muf-fins, wheat bread and apple walnut roll (in increasing concentrations). While you are not likely to become impaired from the ethanol in these drinks and foods, you will not remain alcohol free if you eat or drink them.

Ethanol is generated when sugars are fermented, and this can occur in the hu-man body when yeast and carbohydrates are present. This has been inconsistently demonstrated at DUI seminars and work-shops, with some results above the legal limit (.08 g/100 ml) on varieties of pizza, Wonder Bread or hot dog rolls.

Ethanol can be absorbed into the body in other ways as well. Ethanol is medi-cally administered as an antidote for some poisons. A material safety datasheet for ethanol describes the effects of inhala-tion of ethanol fumes, which can result in coma or death in high concentrations, and will result in absorption of ethanol into the body in lower concentrations. Finally, small amounts of ethanol are absorbed when hand sanitizers, such as Purell, are applied to the skin.

Some manufacturers of machines designed to detect ethanol on the breath have freely interchanged the term “alco-hol” and “ethanol” in their literature and training. The interchangeability of the two terms has been introduced into the statutes

in many states, including Massachusetts. The historic intoxication provision has always required impairment from “intoxi-cating liquor” or an enumerated drug, yet the newer “per se” prohibition is for “alco-hol” in the body, not “ethanol.”

In 2004, the National Highway Trans-portation Safety Administration quietly announced its new mission with regard to approving machines that are designed to measure ethanol in the breath. In placing machines on the conforming products list, which Massachusetts relies upon for ap-proval, NHTSA no longer requires mea-surement of “intoxicating liquor” or “eth-anol.” Approved machines now measure and report any kind of alcohol.

There are two basic classes of ma-chines that measure human breath for al-cohol. One class uses infrared light, and takes advantage of the manner in which molecules behave with respect to energy from that light. These machines are the only ones authorized by the Office of Al-cohol Testing.

The second class of machines uses an electrochemical fuel cell to measure alco-hol. The Sobrietor used in the Galluccio surrender is one of these devices. Fuel cells respond to different kinds of “alco-hol.” While the judge and most lawyers laughed at the proposition that toothpaste would register on the Sobrietor, Senso-dyne toothpaste (the kind shown by Gal-luccio to the probation officer when the positive results were first detected) has Sorbitol as a main ingredient. Sorbitol is an alcohol, as are most chemicals that end in the sound “-ol,” such as menthol.

The Boston Herald confirmed that toothpaste does register on a fuel cell breath test machine that it purchased, but that the readings went away after several minutes. Jacobs gave no special instructions to Galluccio regarding any interference that might elevate readings on the Sobrietor. If a whitening toothpaste is partially retained in the mouth, to extend the whitening affect, then a positive reading on the Sobrietor is not such a silly possibility.

In the case of other probationers, the random request for a test could arrive just as the probationer was brushing their teeth. If the probationer supplies a prompt sample, the procedure would result in a false positive test. If an unexplained posi-tive result were reported, it would not be unreasonable for a probationer to try to clear their mouth of whatever was causing the reading, and that could result in brush-ing one’s teeth. Using mouthwash before a sample is far worse.

Of greater concern in this case, and not raised at the hearing or in the appeal, is the manner in which the Sobrietor came to be set up in Galluccio’s home. The issues of repair of the machine were well developed in the appeal, and are of concern, as are the issues that the machine is not an ap-proved device in Massachusetts.

Assuming that Sobrietors work cor-rectly, Galluccio’s situation bears a sig-nificant risk of contamination from the chemicals used to “clean” the device after it was received from another department the day Galluccio got it. The mask on the device resembles a court stenographer’s mask, and if cleaning is done to sanitize and kill germs, then the cleaning chemi-cals could linger on the mask.

The Sobrietor manufacturer purchases its fuel cells from Draeger, and these fuel cells respond to alcohols other than etha-nol. If the cleaning was done in this man-ner, then one would expect the machine to respond exactly as it did in the Galluccio matter.

Galluccio was not allowed to provide a contemporaneous blood sample to rebut the readings of the Sobrietor. Within a few days, Galluccio was able to submit biolog-ical samples at a forensic center, which su-pervised the collection of samples of urine and hair, so that these biological samples could be evaluated for ethyl glucuronide, or EtG. EtG is produced in the liver when ethanol is metabolized. Absence of EtG can confirm the absence of ethanol several days after a suspected incorrect breath measurement is reported.

Courts routinely accept the results of tests for metabolites of substances, rather than the substances themselves. Such is the manner in which cocaine is routinely tested and reported, through a urine screen that tests for the metabolite benzoylecgo-nine, rather than for the cocaine itself.

In the last year for which statistics were published by probation, 184,775 urine samples were tested by Massachusetts probation departments for the metabolite of cocaine. These tests produce immediate results, by means of chemical reactions to strips of test paper that are exposed to the urine sample. The probationer has an opportunity to request a more specific and scientific analysis, using a GC/MS (gas chromatograh/mass spec) test. It is with some irony that the court in the Galluc-cio matter found the testing of biological samples for the metabolite of a substance to be controversial, when the court rou-tinely accepts tests for the metabolite of cocaine, using a detection mechanism that is not as accurate as what was used in Gal-luccio’s case.

EtG testing is controversial because of false positives. A very small amount of EtG can mean that an alcoholic drink was consumed several days ago, or that Purell hand sanitizer was recently used. A zero reading of EtG in a subject’s urine or blood can only mean that the individual did not have any ethanol in their system within a three-day look-back. Assuming that the analysis was performed in a com-petent lab, by competent scientists, and that collection of samples was performed correctly, the proper chain of custody was maintained, and that there is no evidence of tampering with the hair, urine or blood — then a zero reading is generally accept-ed as scientific proof of abstinence for a window of 72 hours.

Galluccio had samples of hair and urine taken by a forensic lab in Boston, and those samples were properly pre-served and transported to two labs, where the results for both hair and urine resulted in a zero reading for EtG.

The Massachusetts Appeals Court will soon decide whether a positive result on the Sobrietor, which conflicts with obser-vations of the probation officer and zero results from laboratory-tested urine and hair, is sufficient to support a finding of a violation of probation.

Attorneys who practice in the area of probation surrenders should know that EtG tests permit the analysis of biological samples well after the client has naturally eliminated all traces of ethanol in their system.

For the client who drinks, but claims they were not drinking that night, EtG testing may be of limited value. For the client who claims they never drink or have not had an alcoholic beverage in many days or weeks, EtG testing may be one of the only ways to challenge an evidential breath test or a breath test on a machine like the Sobrietor. n

Due to space constraints, footnotes are available online at www.massbar.org/workman

MBF’s $48,000 grant funds Worcester Judicial Youth Corps gallucciomAtterContinued from page 9

Many risks, inconsistencies plague alcohol monitoring

In criminal driving under the influence cases, a

defendant has the right to be “immediately” seen

by a physician, for the purpose of having an

independent test.

aP Photo/Dayton Daily news, ty greenless

A police officer holds up a sobrietor device.


© 2010 Thomson Reuters L-357150/3-10 Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.

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Mass. Lawyer's Journal - July 2010